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Court Backs Rights of Grandparents

With proof that no harm would result, visits with grandchild may be allowed over a custodial parent's objection, the state's top jurists rule.

August 24, 2004|Maura Dolan | Times Staff Writer

SAN FRANCISCO — Grandparents may be given visitation rights to see their grandchildren even if the parent with custody objects, the California Supreme Court ruled 4 to 3 Monday.

In the decision, the state high court upheld the constitutionality of California's grandparent visitation law but placed the legal burden on grandparents to prove that such visits would not harm the grandchild.

Monday's ruling overturned a lower court's decision that found grandparent visitation orders violated a mother's constitutional right to care for her child as she saw best. That reasoning, rejected Monday, reflected a recent trend nationwide in which appellate courts have rejected similar grandparent visitation laws as unconstitutional.

Justice Ming Chin, one of the three dissenters, complained that court-ordered visitation by grandparents infringes on a custodial parent's right to direct the child's upbringing.

"I am not insensitive to the tremendous hurt most grandparents feel [when] they are cut off from their grandchildren," Chin wrote. But "family privacy is grounded on the right of parents to rear their children without unwarranted state interference."

The ruling stemmed from a dispute between Karen Butler, who now lives in Utah and has sole custody of her daughter, Emily, 9, and Emily's paternal grandparents, Leanne and Charles Harris.

Butler and Emily's father split up before their daughter was born, and courts permitted him only supervised visitation. Butler claimed that her former husband had physically abused her. She said he was violent and had threatened to take Emily, and she feared that his parents would not be able to protect Emily from him.

The grandparents nevertheless obtained court orders giving them several weeks a year with Emily, who visits her grandparents in California three times a year.

Jeffrey W. Doeringer, who represented the mother in the case, said he was "greatly disturbed" by Monday's ruling.

"It is going to make parents more subject to attack by grandparents and create much more litigation," Doeringer said.

The ruling isn't an automatic guarantee that grandparents can see their grandchildren, however. Paul W. Leehey, who represented the Harrises, said grandparents would "need significant evidence to show that a child should be seeing them."

Emily has been visiting her paternal grandparents for 30 days each year over the last several years.

"We love Emily, and we have a great relationship with her and she enjoys being here," said Leanne Harris, 57, of her only grandchild.

Harris, who owns a pet grooming salon and retail shop in Fallbrook in San Diego County, said she was pleased that the state high court found the visitation law constitutional but disappointed that she and her husband would have to return to the trial court to win visitation again under the rules established in Monday's decision.

Justice Carlos R. Moreno, writing for the court majority, distinguished California's grandparent visitation law from a similar Washington law that the U.S. Supreme Court struck down in 2000. That ruling prompted several state high courts to reject grandparent visitation laws.

Unlike the Washington law, the California law gives " 'special weight' to the parents' decision if the parents agree that visitation is not in their child's best interest, or to the decision of a parent who has been awarded sole custody of the child," Moreno wrote.

If the custodial parent opposes visitation, the grandparents must overcome a legal presumption that continued visits are not in the child's interests, he wrote.

Moreno noted that Emily's father supported her visits with his parents. He said no court has ever ruled that "grandparent visitation that is supported by one of the parents infringes upon the parental rights of the other parent."

In a separate opinion, Justice Marvin Baxter complained that the majority decision was "bereft of legal authority" and "far broader" than what was necessary to decide the case.

"Under the majority's approach, a custodial parent would have no constitutional protection whatsoever if a state overrode that parent's objections and forced his or her child to go on visits with any third party -- even complete strangers ... as long as the noncustodial parent acquiesced in the court order," Baxter complained.

Justice Janice Rogers Brown also criticized the majority's ruling as overbroad.

She expressed concerns that parents would now encounter "unwarranted judicial intrusion in their private lives" and "significant costs in seemingly unending litigation."

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